Hlad v. State (565 So. 2d 762, 1990)

EN BANC

COBB, Judge.

The defendant below, Albert Hlad, Jr., pled guilty to, and was convicted and sentenced for, a fourth DUI offense. On appeal he urges that the trial court erred in disallowing withdrawal of his plea and not striking a prior 1978 DUI conviction. He argues, inter alia, that his earlier DUI conviction was uncounseled (i.e., he was not afforded court appointed counsel and did not waive counsel) and therefore it may not be used to enhance the severity, hence punishment, of a subsequent offense. In other words, he claims that the present DUI conviction should be his third, not his fourth.

Hlad’s brief argues that the case of Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980) precludes the use of the uneounseled 1978 conviction to enhance the present offense from a misdemeanor to a felony pursuant to section 316.193(2)(b), Florida Statutes (1987). He contends that such enhanced punishment is violative of his sixth amendment right to counsel, and that the burden was on the state at trial to show that his 1978 conviction was counseled or that counsel was waived. In the instant case, Hlad argues, the state could not produce the files pertaining to the 1978 conviction, and therefore failed to meet its burden. Hlad concedes that he was not incarcerated for the 1978 conviction and that the maximum incarceration period possible for that conviction was six months.

It is well established that a conviction obtained in violation of a defendant’s constitutional right to counsel is void and cannot be used by the state in a subsequent criminal proceeding to support conviction under an enhancement or reclassification statute designed to increase the otherwise allowable period of imprisonment. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). However, the sixth amendment right to counsel in misdemeanor cases established by Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) applies only where a defendant is actually imprisoned for the misdemeanor conviction, not where there is merely a possibility of such imprisonment. Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979).

Hlad’s reliance on Baldasar is misplaced and his argument must fail for the simple reason that the crime to which he pled guilty in 1978 was not one which was punishable by more than six months imprisonment, and he was not actually subjected to a term of imprisonment. The result is that the 1978 conviction was not “constitutionally invalid for enhancement purposes.” The limited applicability of Baldasar has been ably analyzed by Judge Zehmer in Allen v. State, 463 So.2d 351 (Fla. 1st DCA 1985):

In Baldasar, supra, the defendant was charged with petit theft and the state introduced evidence of a prior theft conviction to reclassify the misdemeanor charge to a felony. The defendant objected to admission of the prior conviction, arguing that he had not been represented by counsel and, as a result, his conviction was too unreliable to support enhancement. This argument was made even though the defendant, under Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), was not entitled to court-appointed counsel in the prior petit theft proceeding because he was not actually sentenced to jail. The Court split 4-1-4 on the issue of using the prior uncounseled conviction for reclassification purposes. The four-member plurality held that the uncounseled conviction could not be used to support the jail sentence for the subsequent felony petit theft because that would result in the defendant being deprived of his liberty as a direct consequence of his uncoun-seled misdemeanor conviction, in violation of the rule in Scott v. Illinois. The four dissenting justices held the view that because the misdemeanor conviction was constitutionally valid under Scott v. Illinois, it could properly be used to support the subsequent felony charge and enhanced penalty. In a concurring opinion, Justice Blackmun followed the “bright line” approach enunciated in his dissenting opinion in Scott and concluded that, since Baldasar, under the “bright line” scheme, had a right to counsel in the prior misdemeanor action because he was prosecuted for an offense punishable by more than six months’ imprisonment, his prior misdemeanor conviction was invalid and could not be used to support the felony petit theft charge.

Because Justice Blackmun’s concurring opinion limits the impact of Baldasar, the most that can be derived from that decision is the rather unremarkable holding that a misdemeanor conviction, void because obtained in violation of a defendant’s right to counsel, cannot be subsequently used to support conviction for an offense requiring imprisonment under a reclassification or recidivist statute. This holding is a logical extension of Burgett v. Texas to misdemeanor actions.

Even Justice Blackmun’s opinion in Baldasar would not preclude the use of Hlad’s 1978 conviction for enhancement purposes in the instant case. In Baldasar, Justice Blackmun held the decisive vote and expressly adopted the view he had previously enunciated in Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979):

In Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), I stated in dissent:

“Accordingly, I would hold that an indigent defendant in a state criminal ease must be afforded appointed counsel whenever the defendant is prosecuted for a nonpetty criminal offense, that is, one punishable by more than six months’ imprisonment, see Duncan v. Louisiana, 391 U.S. 145, [88 S.Ct. 1444, 20 L.Ed.2d 491] (1968); Baldwin v. New York, 399 U.S. 66, [90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); or whenever the defendant is convicted of an offense and is actually subjected to a term of imprisonment, Argersinger v. Hamlin, 407 U.S. 25, [92 S.Ct. 2006, 32 L.Ed.2d 530] (1972).

“This resolution, I feel, would provide the ‘bright line’ that defendants, prosecutors, and trial and appellate courts all deserve and, at the same time, would reconcile on a principled basis the important considerations that led to the decisions in Duncan, Baldwin, and Argersinger.” Id. at 389-390, 99 S.Ct., at 1170.

I still am of the view that this “bright line” approach would best preserve constitutional values and do so with a measure of clarity for all concerned. Had the Court in Scott v. Illinois adopted that approach, the present litigation, in all probability, would not have reached us. Petitioner Baldasar was prosecuted for an offense punishable by more than six months’ imprisonment, and, under my test, was entitled to counsel at the prior misdemeanor proceeding. Since he was not represented by an attorney, that conviction, in my view, is invalid and may not be used to support enhancement.

Judge Zehmer’s analysis of Baldasar has been followed by the Second District in State v. Hanney, 15 F.L.W. 1149 (Fla. 2d DCA April 25, 1990) and Leffew v. State, 518 So.2d 1376 (Fla. 2d DCA 1988). The Fourth District also has adopted the same approach in Cooper v. State, 538 So.2d 105 (Fla. 4th DCA 1989), expressly holding that the points from a defendant’s previous convictions may be used to enhance the defendant’s sentence on a subsequent conviction if the defendant did not have a right to counsel in the prior proceedings. See also Hamm v. State, 521 So.2d 354 (Fla. 2d DCA 1988). Of the other appellate courts in Florida, only the Third District has not addressed the issue now before us.

The problem with which we deal here has been thoroughly and perceptively discussed by Professor David S. Rudstein in his article entitled. “The Collateral Use of Uncoun-seled Misdemeanor Convictions After Scott and Baldasar” appearing in Volume XXXIV, University of Florida Law Review at page 517. Therein, Professor Rudstein observed:

Baldasar should not be read, however, to preclude the subsequent use of a prior uncounseled misdemeanor conviction under an enhanced penalty provision when the previous offense was punishable by imprisonment for six months or less and the conviction did not actually result in the defendant’s imprisonment. The opinions of Justices Marshall and Stewart would- clearly preclude the subsequent enhancement use of any prior uncoun-seled misdemeanor conviction. These opinions focused only on the increased imprisonment for the subsequent offense without any mention of the authorized punishment for the prior offense. It is equally clear the four dissenters would allow such a conviction to be used for enhancement purposes if, as in Balda-sar, the prior conviction was constitutional under Argersinger and Scott.

The deciding opinion, therefore, would be that of Justice Blackmun. Although he did not expressly deal with this situation in Baldasar, it is fair to infer from Justice Blackmun’s emphasis on the invalidity of Baldasar’s previous conviction under his bright-line test that he would allow a prior uncounseled misdemeanor conviction that was constitutionally valid to be subsequently used under an enhanced penalty provision. Additionally, in Justice Blackmun's view, a misdemeanor conviction for an offense punishable by not more than six months imprisonment that does not actually result in the defendant’s imprisonment is constitutionally valid, even though uncounseled. It therefore follows he would join with the four Baldasar dissenters and allow its subsequent use for sentence enhancement purposes. [Footnotes omitted].

Ibid at 534-535.

Professor Rudstein also observes in his article, which was published in 1982, that the change in the Court’s composition caused by Justice Stewart’s retirement and his replacement by Justice O'Connor could easily result in adoption by the Court, upon a revisitation of Baldasar, of the position that all constitutionally valid misdemeanor convictions of record may be utilized for subsequent enhancement purposes. See 34 Fla.L.Rev. 535, n. 87.

Hlad urges the minority view in Balda-sar in an attempt to justify reversal of his present conviction. He fails to acknowledge that five members of the United States Supreme Court in Baldasar rejected the view which he advances in the instant appeal. Any reliance on Burgett is equally misplaced since that case involved the erroneous admission of prior felony convictions obtained in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

The appellant also relies on Harrell v. State, 469 So.2d 169 (Fla.lst DCA), review denied, 479 So.2d 118 (Fla.1985), wherein the First District accepted the over-simplification of Baldasar that is urged by the appellant and the dissent herein: no prior uncounseled misdemeanor conviction may be used for subsequent enhancement under any circumstances. See also Pilla v. State, 477 So.2d 1088 (Fla. 4th DCA 1985). While that was the minority view in Balda-sar, it was not the view of Justices Blaek-mun, White, Rehnquist, Powell and Chief Justice Burger. This distinction was completely overlooked in Harrell, placing it in direct conflict with Allen. Although both Harrell and Allen emanated from the same appellate court in the same year, the later case (Harrell) makes no mention of the earlier one. The First District appears to have receded from Harrell, sub silentio, in Kearse v. State, 501 So.2d 80 (Fla. 1st DCA 1987). In any event, we agree with Allen.

The dissent cites to State v. Troehler, 546 So.2d 109 (Fla. 4th DCA 1989). In that case, the opinion of the court, without discussing the analytical problems inherent in the Baldasar 4-1-4 split, assumed that an earlier 1976 DUI conviction, if uncounseled, could not be used for later enhancement. There is no indication in Troehler as to whether or not the 1976 conviction resulted in incarceration. If there was no incarceration imposed for that conviction, then we would disagree with the Troehler result.

We note that the trial court relied, at least in part, on our opinion in State v. Caudle, 504 So.2d 419 (Fla. 5th DCA 1987) in denying Hlad’s motion to strike consideration of his 1978 DUI conviction. The trial court felt that Caudle was guilty of laches and precluded from attacking his 1978 DUI conviction nine years later, after the records of the 1978 proceedings were disposed of, when that conviction was not challenged at either of his subsequent DUI convictions in 1983 and 1984. It is not necessary to rely on Caudle in the instant case for the reasons previously explicated in this opinion. In any event, we believe the result reached by this court in Caudle was correct because the liberty interest to be protected in Argersinger and Scott dealt only with “imprisonment,” not probation or the revocation of a license.

In conclusion, we find that Hlad had no constitutional right to appointed counsel in 1978 pursuant to Baldasar, Scott, Hanney, Cooper, Leffew, and Allen. Hence, the appealed conviction for Hlad’s fourth DUI is affirmed. As a collateral reason for our affirmance, we would point out that while Hlad could have been imprisoned for over one year pursuant to section 775.082 or section 775.084, the trial court only sentenced Hlad to five years probation, contingent on serving 364 days in jail. This was within the range of a third conviction under section 316.193(2)(a)2.c. and thus, Hlad cannot claim that his prison term was unconstitutionally enhanced resulting in a “greater prison term.”

We find no merit in appellant’s remaining issues except one: the state concedes that the trial court imposed costs and fees against Hlad without notice or opportunity to be heard contrary to Mays v. State, 519 So.2d 618 (Fla.1988).

The judgment and sentence below are affirmed, except for the cost order, which is reversed.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

DAUKSCH, HARRIS, PETERSON and GRIFFIN, JJ., concur.

SHARP, W. and GOSHORN, JJ., concur in result only.

COWART, J., dissents with opinion with which DANIEL, C.J., concurs.

. A broad interpretation of the word "imprisonment” might lead to the conclusion that an uncounseled misdemeanor conviction resulting in probation violates the rule of Argersinger and Scott. We believe the correct interpretation of the word means confinement in a jail or state penitentiary. Note the court’s use of the word “incarceration” in Scott, 440 U.S. at 372, 99 S.Ct. at 1161.

. See Smith v. City of Gainesville, 93 So.2d 105 (Fla.1957); State Department of Highway Safety and Motor Vehicles v. Vogt, 489 So.2d 1168 (Fla. 2d DCA 1986). According to Justice Blackmun’s bright-line test, where there was a conviction for a traffic offense, the defendant was not actually imprisoned, and the authorized penalty did not exceed six months imprisonment, this would be constitutionally valid and could be used to revoke a driver’s license. If, however, the offense was punishable by more than six months imprisonment, but the defendant was not actually imprisoned, the conviction would be invalid under Justice Blackmun's test. Regardless, this does not mean that Justice Black-mun would not allow the prior traffic offense conviction to be used collaterally in a civil proceeding which could result only in a civil disability.

COWART, Judge,

dissenting.

(1) FACTS:

In 1988 the defendant (Hlad) was charged with driving under the influence of alcohol (DUI) after having been three times previously convicted of DUI, a felony under section 316.193(2)(b), Florida Statutes. By post-conviction motion, the defendant raised an issue as to the constitutionality of using his 1978 misdemeanor DUI conviction as an element of the 1988 felony DUI charge alleging and swearing, that he neither had, nor waived, counsel in the 1978 misdemeanor DUI case.

The 1978 misdemeanor DUI judgment is silent as to the defendant having or waiving counsel. The State presented no evidence in rebuttal, contradiction, or impeachment, of the defendant’s testimony but instead claimed a presumption that the 1978 judgment of conviction was “valid” and, further, asserted that the defendant was barred by laches from claiming otherwise, citing State v. Caudle, 504 So.2d 419 (Fla. 5th DCA 1987). The trial court, expressly relying on Caudle, denied the defendant’s motion to exclude the 1978 misdemeanor DUI conviction. The defendant appeals.

(2) UNCOUNSELED CONVICTIONS:

Unless represented by counsel at trial, in the absence of a knowing and intelligent waiver of counsel, no person may be imprisoned for any offense.

An uncounseled conviction in which there was no waiver of counsel will not support a finding of guilt or an increased term of imprisonment on a subsequent conviction.

(3) PRESUMPTIONS IN CRIMINAL CASES

When the natural causative relationship between two facts is such that the existence of fact A will rationally imply to a reasonable man the existence of fact B, the relationship is one of implication and inference. When the relation of the two facts results in no logical deductive inference, or an inductive inference of very weak probative force, the law sometimes uses a mandatory presumption to create an artificial probative force and relationship between the two facts beyond that which they naturally and ordinarily possess. The terms, presumptions and inferences, are often confused but the substantive distinction between them while subtle, is not unreal. The dilemma is that statutes providing that certain facts shall be prima facie or presumptive evidence of other facts are constitutional only if there is a natural, rational implicative and inferential relation between the facts proved and those presumed. This is called the constitutional “rational connection test.” For this reason “presumptions” against an accused in a criminal case must be treated as “permissive inferences.” See 1 C. Torcía, Wharton’s Criminal Evidence §§ 32, 34 (14th ed. 1985). The problem is that inferences are an aspect of evidence and, unlike presumptions, do not themselves serve a burden-shifting function.

There is no provision in the Florida Evidence Code for the use of presumptions in criminal cases. Each of the two statutory definitions of presumptions (§§ 90.303 and 90.304, Fla.Stat.) are qualified and limited by the phrase “in a civil action or proceeding.” There is a very good reason for this: the use of a purely mandatory presumption in a criminal case to shift the burden of proof from the State onto the accused violates the accused’s fundamental constitutional due process rights which mandate a presumption of innocence in favor of an accused in a criminal case as an aspect of the requirement that the prosecution must prove beyond a reasonable doubt every fact necessary to constitute the crime charged. Whether, in the DUI offenses in section 316.193(2)(a)l.b. (second convictions) and c. (third convictions) and in section 316.-193(2)(a)2.b. (fourth or subsequent violations), the prior convictions are elements of the crime charged or merely factors enhancing punishment, the constitutionally mandated burden of proof is on the prosecution to prove valid and constitutional pri- or convictions, and this includes proof that the defendant had, or waived, counsel. The State may not constitutionally invoke an evidentiary presumption to shift and cast the burden onto the accused to prove that he did not have, or waive, counsel in his prior criminal case. The State’s attempted use of a presumption to shift its burden to the accused to prove a negative rather than adducing positive evidence that the defendant had, or waived, counsel in a prior criminal case, is “wholly at war with” (1) the accused’s constitutional presumption of innocence; (2) the principle that the State may not use against an accused a mandatory presumption without a “rational connection”;” (3) constitutional provisions that no person shall be compelled in any criminal case to be a witness against himself. Evidentiary presumptions cannot be constitutionally applied in criminal cases to place the defendant in the dilemma of being compelled to testify or to suffer the State to use assumed (presumed) facts, rather than evidence, to meet the State’s constitutional burden of proof as to facts essential to guilt or penalty.

(4) PRESUMING WAIVER OF COUNSEL FROM A SILENT RECORD IS CONSTITUTIONALLY IMPERMISSIBLE

In Carnley v. Cochran, 123 So.2d 249 (Fla.1960), the Florida Supreme Court in discharging a writ of habeas corpus, stated:

If the record shows that defendant did not have counsel or fails to show whether he did or did not have counsel, it will be presumed that defendant waived the benefit of counsel and elected to present his own defense, as he has the right to do....

123 So.2d at 251.

In Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962), the United States Supreme Court reversed the Florida Supreme Court, stating:

Nor is it an answer to say that he may counter such presumptions on collateral attack by showing-if he can-that he had not in fact agreed, or been willing, to be tried without counsel. To cast such a burden on the accused is wholly at war with the standard of proof of waiver of the right to counsel which we laid down in Johnson v. Zerbst, 304 U.S. 458, 464-465, 58 S.Ct. 1019, [1023] 82 L.Ed. 1461. “It has been pointed out that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we “do not presume acquiescence in the loss of fundamental rights.”

369 U.S. at 514, 82 S.Ct. at 889.

The United States Supreme Court stated that the constitutional right of an accused to be represented by counsel invokes a duty on the trial court of determining whether there was an intelligent and competent waiver of the right to counsel. The court stated that the Fourteenth Amendment would not countenance any presumption of waiver from the appearance of the accused without counsel or from the silence of the record as to an offer and affirmative waiver of counsel and held:

Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver. [Emphasis added].

369 U.S. at 516, 82 S.Ct. at 890.

Where a defendant raises the issue of an uncounseled conviction, the State must show more than a valid conviction. Where the judgment of conviction does not show on its face that the defendant had, or validly waived, counsel the State must show by a preponderance of the evidence that the defendant was represented by counsel or that counsel was offered and validly waived. Presuming waiver of counsel from a silent record is impermissible. Also a silent record is not a “rational basis” from which to infer counsel or waiver, see Part (3) above.

(5) NO PRESUMPTION OF COUNSEL OR WAIVER ARISES FOR A NON-IN-CARCERATIVE MISDEMEANOR CONVICTION

There is a presumption in favor of the regularity and validity of a judgment of a court of record with general jurisdiction but that presumption does not apply in this case to include a presumption that the defendant had or waived counsel in his 1978 misdemeanor DUI case. The issue in this case is whether the defendant had, or waived, counsel in the case resulting in his 1978 misdemeanor conviction. The issue is not whether or not the defendant’s 1978 misdemeanor judgment of conviction is “valid.” This distinction is vital because in this case the defendant’s 1978 misdemean- or conviction was “valid” although he did not have, or waive, counsel. This point is established and illustrated by Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979) which held that the Ar-gersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), requirement of counsel does not attach in those misdemeanor cases where the accused suffers no confinement and that although Scott did not have, or waive, counsel his judgment of conviction of theft was valid and effectual because he was only fined $50 and was not confined, although confinement was an authorized punishment. The presumption that a judgment of conviction is valid extends to and covers only those facts which are essential to the validity of the judgment. Because in a misdemeanor case not involving confinement it is not essential to the validity of a judgment of conviction for the defendant to have or waive counsel, as in Scott v. Illinois, in State v. Caudle and in this case, the presumption that a judgment is valid does not extend to and does not include a presumption that the accused had, or validly waived, counsel. This point of law is well considered in Harrell v. State, 469 So.2d 169 (Fla. 1st DCA 1985), rev. denied, 479 So.2d 118 (Fla.1985), and is the reason that Florida Rule of Criminal Procedure 3.111(b)(1) provides that counsel need not be provided an indigent in a misdemeanor case if the judge files a pretrial statement that the defendant will not be imprisoned if convicted.

The majority attempts to avoid Argersinger v. Hamlin and Baldasar v. Illinois but its analysis does not withstand critical review.

The Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.

In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the Supreme Court established the right to counsel in state court felony prosecutions under the Sixth and Fourteenth Amendments to the Constitution. Argersinger v. Hamlin recognized the right to counsel in misdemeanor cases that “end up in the actual deprivation of a person’s liberty.” Thereafter, in Scott v. Illinois, the question was whether counsel must be provided to an indigent defendant in a misdemeanor prosecution if imprisonment was an authorized punishment but had not actually been imposed. The Court answered the question in the negative, holding that an uncounseled misdemeanor conviction is constitutionally valid if the offender is not incarcerated. Justice Blackmun dissented, stating he would hold that counsel was required if the defendant is prosecuted for a non-petty criminal offense, i.e., one punishable by more than six months imprisonment or whenever the defendant is convicted of an offense and is actually subjected to imprisonment.

In Baldasar, the Court was confronted with the question of whether an uncoun-seled petit larceny conviction could be used under an enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term. A plurality of the court declared it could not, relying on Scott to hold that an uncounseled misdemeanor conviction could not be used to impose an increased term of imprisonment. Justice Blackmun concurred in the court’s decision that the prior uncounseled conviction could not be used to support enhancement and based his decision on his dissent in Scott, declaring that the defendant was entitled to counsel in the prior misdemeanor prosecution since that offense was punishable by more than six months’ imprisonment and that conviction was invalid because of the absence of counsel. In other words, Justice Blackmun did not reach the issue of use of the misdemeanor conviction in the subsequent proceeding to enhance imprisonment because in his view, that misdemeanor conviction itself was constitutionally invalid. Justice Blackmun provides no clue as to how he would rule if the State sought to use a misdemeanor conviction valid under his right to counsel test to subsequently enhance imprisonment.

The majority opinion in this case concludes that Justice Blackmun would permit use of the 1978 misdemeanor conviction against Hlad because the maximum incarceration faced by Hlad at that time was six months. The majority opinion erroneously focuses just on the existence vel non of a right to counsel on the 1978 charge because Justice Blackmun focused on the earlier misdemeanor charge. Under the guise of following Justice Blackmun’s opinion, the majority totally ignores the current use of the uncounseled misdemeanor conviction to increase Hlad’s punishment and thus contradicts the rationale of Argersinger and Scott. Indeed, it seems more likely than not that Justice Blackmun, who sought unsuccessfully to extend the right to counsel in Scott v. Illinois would not permit an uncounseled misdemeanor conviction to be used to subsequently increase a defendant’s imprisonment. Further, the primary source for the majority’s position, Professor Rudstein concludes that, “The better rule would prohibit enhancement use of all prior uncounseled misdemeanor convictions if the accused had not validly waived the right to counsel.”

The majority denigrates the analysis in Harrell v. State, 469 So.2d 169 (Fla. 1st DCA 1985), rev. denied, 479 So.2d 118 (Fla.1985) and State v. Troehler, 546 So.2d 109 (Fla. 4th DCA 1989), without noting that our supreme court in a case involving use of a second degree misdemeanor to support sentencing as an habitual misdemeanant invoked Baldasar and referred to it as holding “that an uncounseled misdemeanor conviction cannot be used under an enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term” though the court ultimately ruled the defendant had validly waived counsel in writing. McKenney v. State, 388 So.2d 1232, 1234 (Fla.1980).

Justice Blackmun dissented in Scott; and in his specially concurring opinion in Bal-dasar, Justice Blackmun referred to his dissent in Scott but recognized that Scott is controlling law and merely lamented that the issue in Baldasar would probably not have arisen if his dissent had been adopted by the majority view in Scott. However, neither Argersinger nor Scott was overruled or invalidated merely because in Justice Blackmun’s concurring opinion in Bal-dasar Justice Blackmun referred to his dissent in Scott, nor is the holding in Balda-sar limited merely because the result in Baldasar could have resulted under Justice Blackmun’s dissenting view in Scott. The majority opinion in this case uses Justice Blackmun’s reference in his concurring opinion in Baldasar to his own dissenting view in Scott as justification for not applying Scott and Baldasar in this case. With all due respect to Professor Rudstein, Justice Blackmun’s individual views as expressed in his dissent in Scott (with which none of the other eight justices agreed) and in his special concurring opinion in Balda-sar, (with which again none of the other eight justices agreed), do not constitute the opinion of the Supreme Court of the United States. Baldasar is viable, in point and controlling and requires a reversal in this case.

(6) PRESUMPTIONS:

The State’s position in this case is that the State proved a basic fact (the existence of the 1978 misdemeanor DUI judgment of conviction) from which a presumption arose that the judgment was valid and that presumption necessitated and included an assumption that all facts exist that are essential for the judgment to be valid and that among those assumed facts is that in the 1978 misdemeanor case the defendant had, or validly waived, counsel.

In this case there is no “rational connection” between the fact proved (1978 non-in-carcerative misdemeanor conviction) and the fact presumed (that the defendant had, or waived, counsel in the 1978 misdemean- or case). See Part (3) above.

It violates constitutional due process to apply a presumption that a defendant had, or waived, counsel in a prior criminal case where, as in this case, the record of that case does not affirmatively show the presence of counsel or a valid waiver. See Part (4) above. Not only can a presumption of counsel or waiver not be based on a silent record but the presumption that a judgment is valid does not include a presumption that the defendant had, or waived counsel in a misdemeanor case where no incarceration was imposed. See Part (5) above.

Nevertheless, assuming arguendo that a burden-shifting presumption could be properly applied in this criminal case, the trial judge either applied the wrong presumption or misapplied the right one.

The defendant’s testimony was sufficient, as a matter of law, to overcome the correct presumption and his testimony could not be rejected merely because the trial judge did not believe it because it was not offered to the judge as fact-finder to meet a burden of proof and persuasion.

Section 90.301(1), Florida Statutes, defines a presumption as “an assumption of fact which the law makes from the existence of another fact or group of facts found or otherwise established.”

Decades of legal thought and debate as to the proper purpose and function of re-buttable legal presumptions resulted in two distinctly different views: the view espoused by Professors Thayer and Wig-more and a conflicting and competing view urged by Professors Morgan and McCormick. To serve different purposes the Florida Evidence Code adopted both types, classifying the Thayer-Wigmore type in section 90.302(1), Florida Statutes, as “a presumption affecting the burden of producing evidence” and the Morgan-McCormick type in section 90.302(2), Florida Statutes, as “a presumption affecting the burden of proof.” The Thayer-Wig-more-§ 90.302(1) presumption, commonly called a vanishing or “bursting bubble” presumption, is a procedural device (a procedural rule) established primarily to facilitate the determination of a particular action '{see § 90.303, Fla.Stat.) while the Morgan-McCormick-§ 90.302(2) presumption is a rule of substantive law used to implement public policy (see § 90.304, Fla. Stat.)

The presumption that a judgment of a court of record of general jurisdiction is “valid” is a Thayer-Wigmore-§ 90.302(1) “bursting bubble” procedural type presumption affecting the burden of producing evidence in a particular action.

A comparison and analysis of the theoretical procedural process as to each presumption best illustrates the differences between the two presumptions. The first five steps are in common as to both presumptions:

Step 1: The party with the burden of proof and persuasion as to the presumed fact (the proponent of that fact) introduces evidence for the purpose of persuading (convincing) the fact-finder of the existence of the basic fact.

Step 2: The opposing party (the opponent of the presumed fact) may introduce evidence in rebuttal of the proponent’s evidence and evidence in negation of the existence of the basic fact.

Step 3: The proponent may introduce evidence in rebuttal of the opponent’s evidence.

Step 4: The trier of fact, if convinced to the applicable standard of proof, finds, as a matter of fact, that the basic fact exists.

Step 5: A legal rebuttable presumption arises that the presumed fact exists.

Under the Thayer-Wigmore-§ 90.302(1) view, the presumption shifts a burden to the opponent to “produce evidence” as to the nonexistence of the presumed fact or suffer the presumed fact to be found as a matter of law.

Step T6: To dispel or rebut the presumption, the opponent produces to the judge “evidence” of the nonexistence of the presumed fact.

Step T7: If the opponent’s proffered evidence is legally “sufficient” the judge rules that the presumption vanishes. Step T8: The proponent, in order to persuade (convince) the fact-finder, may introduce evidence of the existence of the previously presumed fact. Step T9: The opponent may introduce evidence in rebuttal of the proponent’s evidence and evidence as to the nonexistence of the previously presumed fact which may, of course, include evidence proffered in step 6 to dispel the presumption. '

Step TIO: The proponent may introduce evidence in rebuttal of the opponent’s evidence.

Step Til: The trier of the facts with its usual discretion weighs the evidence as to the previously presumed fact but gives no evidentiary weight to the dissipated and vanquished presumption, and if persuaded (convinced) that the proponent has established the formerly presumed fact to the applicable standard (greater weight, clear and convincing, or beyond a reasonable doubt), finds that the previously presumed fact exists; otherwise, it finds for the opponent.

Under the Morgan-McCormick-§ 90.-302(2) view, the presumption is deemed evidence of probative weight and operates to shift the entire burden of proof and persuasion to the opponent to establish the nonexistence of the presumed fact.

Steps 1-5 same as above.

Step M6: The opponent may introduce evidence to meet a burden of proof and persuasion and to attempt convince the fact-finder of the nonexistence of the presumed fact.

Step M7: The proponent may introduce evidence in rebuttal of the opponent’s evidence and evidence as to the existence of the presumed fact.

Step M8: The opponent may introduce evidence in rebuttal of the proponent’s evidence.

Step M9: The trier of the fact with its usual discretion weighs all evidence introduced by both parties as to the presumed fact, giving the presumption probative weight as evidence, and, if persuaded (convinced) that the evidence presented by the opponent has established the nonexistence of the presumed fact to the applicable degree of proof, finds that the presumed fact does not exist, otherwise it finds in favor of the presumption and for the proponent.

As this analysis shows the essential differences between the two types of presumptions are:

(1) The Thayer-Wigmore-§ 90.302(1) presumption is not accorded the weight of evidence. The opponent produces, at Step T6 above, some evidence contrary to the presumed fact for the sole purpose of pricking and bursting the presumptive “bubble” and when this is done, the presumption vanishes, and the parties stand where they were before the presumption arose. The determination of the sufficiency of the evidence at Step T6 above, is made by the judge as a matter of law and not by the fact-finder as a matter of fact.

(2) The Morgan-McCormick-§ 90.302(2) presumption is never dispelled but is always accorded evidentiary probative weight at least sufficient to constitute a prima facie case and to shift the entire full burden of proof and persuasion to the opponent to disprove the presumed fact and in the subjective evaluation of all the evidence presented on that issue the trier of fact may disbelieve and discredit the evidence adduced by the opponent and can accord the presumption sufficient eviden-tiary weight to outweigh positive evidence adduced against it.

The most controversial aspect of the Thayer-Wigmore § 90.302(1) “bursting bubble” presumption, and the feature most difficult to conceptualize and express, relates to the quantum of evidence that the opponent of the presumption must proffer, in Step T6 above, in order to dispel the presumption, and fully recast upon the proponent the original burden of proof and persuasion as to the previously presumed fact. Because under the Thayerian theory the burden of proof and persuasion as to the existence of the presumed fact is on the proponent of that fact, and never shifts, the opponent of the presumed fact does not produce (proffer) evidence at Step T6 to meet a burden of proof and persuasion as to the nonexistence of the presumed fact. Likewise, because the existence of the presumed fact is only “assumed” as a result of a legal presumption and has not been established by convincing probative evidence, the opponent does not produce (proffer) evidence at Step T6 to rebut or overcome a prima facie evidentiary case established by direct evidence or by a natural, logical inductive inference resulting from implicative probative (circumstantial) evidence.

The Thayer-Wigmore-§ 90.302(1) presumption exists merely as a procedural device to dispense with unnecessary proof of a fact likely to be true in the absence of any contrary evidence. Accordingly, the opponent produces evidence at Step T6 only to demonstrate that there does exist admissible evidence contrary to the presumption. When this occurs, there is no further need for the legal assumption (presumption) which then vanishes and the existence of the presumed fact is resolved by trial.

In order to rebut and dispel the Thayer presumption, as originally conceived, the opponent had only to produce some “evidence” — even a scintilla or iota of unbelieved evidence was enough. Opponents of Thayer’s doctrine complained that a presumption should be given more weight and should not be dispelled by evidence that the fact finder did not, and did not have to, believe.

The “production” of evidence by the opponent of the presumption at Step T6 above is strongly analogous to the production of evidence by the non-moving party upon a motion for summary judgment in a civil action under Florida Rule of Civil Procedure 1.510. The evidence is not produced by the opponent of the presumed fact for the purpose of being weighed as evidence in order to persuade and convince a fact-finder but is produced to the judge to demonstrate that, as a matter of law, contrary evidence exists and that, accordingly, there is a genuine issue of fact to be tried by the fact-finder. As it is legal error for the trial judge to attempt to weigh and discredit admissible evidence offered in opposition to a motion for summary judgment, it is likewise error for the trial judge to weigh and discredit admissible evidence offered to dispel a Thayer-Wigmore-§ 90.-302(1) presumption. When such admissible contrary evidence is produced by the non-moving party the trial judge must recognize its legal sufficiency and deny the motion for summary judgment and set the factual issue for trial; likewise, the trial judge must recognize the legal sufficiency of such evidence when offered by the opponent of a Thayer-Wigmore-§ 90.302(1) presumption, rule that the presumption is dispelled and submit the factual issue as to the presumed fact to the appropriate fact-finder (judge or jury) for trial, as in steps T8 through Til above, with the full original applicable burden of proof and persuasion being on the original proponent of the previously presumed fact.

Even after a majority of courts accepted Thayer’s concept of a “vanishing” presumption, opponents continued to insist on some defined standard or quantum of evidence necessary to rebut it — something more than a mere scintilla or iota of evidence. Several standards have been proposed but the one with the most acceptance is the standard as to the legal sufficiency of evidence necessary to support or sustain, in an appellate court, a fact finding made in the trial court of the nonexistence of the presumed fact. This is equivalent to the “substantial competent evidence” standard of appellate review, an objective quantitative standard which by definition and function does not allow for subjective rejection of evidence based on witnesses being unbelieved by the reviewing court. In this application, however, the standard is not being applied by an appellate court reviewing the legal sufficiency of the evidence supporting a fact finding in the trial court but by a trial judge reviewing evidence produced to the judge (as law-giver and not as fact-finder) by the opponent of the presumption at the Step T6 stage above. This standard has been embodied in the Model Code of Evidence and adopted in six legislated evidence codes, including section 90.301(2), Florida Statutes. That statute provides that the presumption requires “the trier of fact to assume the existence of the presumed fact, unless credible evidence sufficient to sustain a finding of the nonexistence of the pre sumed fact is introduced." [Emphasis added].

Present day descendants of the decades of critics of the Thayer concept will disregard the balance of this phrase and seize upon the words “credible evidence” to argue that this means that the trial judge has the “prerogative” to discard the evidence produced by the opponent of the presumption on the basis of lack of credibility of a witness. This is not and cannot be the correct interpretation of this statute because, as Morgan and other informed opponents of the Thayer doctrine recognized, such an interpretation would serve to convert a Thayer-Wigmore-§ 90.302(1) presumption affecting the burden of producing evidence to a Morgan-McCormick-§ 90.302(2) presumption affecting the burden of proof and persuasion. An erroneous interpretation of the word “credible” would effectually eliminate Steps T6 and T7 above, (in which the judge rules on the legal sufficiency of the opponent’s evidence), treat the presumption as if it were evidence against the criminal defendant and leave him with the burden of proof and persuasion, as in Steps M6-8 above. This violates a criminal defendant’s constitutional due process rights and is exactly what occurred to Caudle and the defendant Hlad in this ease and is what is approved by the opinion in Caudle and by the majority opinion in this case.

Furthermore, such an erroneous construction of the statute would be based on a confusion of the word “credible” with the word “credited.”

The word credible in section 90.302(1) means the same as the word substantial in the phrase “substantial competent evidence.” In this context the words “credible” and “substantial” both relate not to some quantum measure of evidence nor to a fact-finder’s subjective weighing of the quality (credit-worthiness) of evidence, which includes an evaluation of the credibility and demeanor of witnesses, but to an objective recognition of the matter offered as being evidence capable of being believed and capable of supporting a fact-finding. These words are intended to exclude only evidence that is inherently incredible, such as asserted facts or events that are contrary to commonly known and generally accepted scientific or mathematical principles, geographic facts, natural laws or common sense. This meaning is revealed by dictionary definitions and is recognized in a comment by Professor Morgan, the chief critic of the Thayer-Wigmore theory.

Credited means believed; uncredited and discredited mean not believed; creditable means deserving of credit; uncreditable means not worthy of being believed. Credible means capable of being believed; incredible means not credible, unbelievable or to be, or seem to be, impossible. The statute uses the word credible, not the word credited.

In a law review article in 1933 Professor Morgan in criticizing the Thayer-Wig-more presumption for the ease with which it could be destroyed by unbelievable testimony stated, “... it is a little short of ridiculous to allow so valuable a presumption to be destroyed by the introduction of evidence without actual persuasive effect. Indeed, the only purpose which the reception of such credible but discredited evidence can ever accomplish is to demonstrate that in the particular case the proposition that the presumed facts exists is legally disputable....”

This comment at once recognizes and demonstrates the difference between “credible” and “discredited” evidence and also clearly states the theoretical difference between the legal sufficiency of evidence and the weight of evidence which distinction is incorporated in our present day summary judgment practice. Professor Morgan was writing in 1933, before the adoption of federal rules in 1938 which were the basis for the Florida summary judgment rule adopted in 1950. Forty years of experience with the summary judgment concept should aid Florida lawyers and judges to understand the conceptual difference between evidence produced to demonstrate that “legally disputable” evidence exists as to a particular factual proposition and evidence produced to persuade and convince a trier of fact as to the truth of a factual proposition. The testimony of Hlad, the defendant in this case, that he did not have, and did not waive, counsel in his 1978 misdemeanor DUI case is set forth below. The defendant’s testimony is sworn, positive, unequivocal, uncontradicted, unrebut-ted, and unimpeached. As a matter of law it is credible evidence sufficient to sustain a finding that he did not have, and did not waive an offer of, counsel in his 1978 misdemeanor DUI case. Therefore the evidence he produced was sufficient, as a matter of law, to vanquish the rebuttable proposition as to that fact. The trial judge should have granted the defendant’s motion to exclude the 1978 misdemeanor DUI conviction not because the defendant’s testimony persuaded or convinced the trial judge as to a matter of fact but because the testimony was sufficient as a matter of law to, and did, rebut any presumption that he had or waived counsel in the 1978 misdemeanor case, and the State having the burden of proof to show that the defendant had, or had waived, counsel in that case offered no evidence of that fact and had the benefit of no presumption of that fact.

(7) LACHES

In this case, the record shows that the trial judge did not reject the defendant’s testimony as being unworthy of credit; the State and the trial judge warmly embraced and relied solely on the concept of laches as applied in State v. Caudle.

(7)(a) STATE v. CAUDLE

After being convicted of a DUI in 1983 and having his sentence enhanced because of a 1974 and a 1976 DUI, Caudle in 1985 moved the county court to vacate the 1983 conviction because his 1974 and 1976 DUI convictions were “invalid.” At the hearing before the county court Caudle testified that in the 1976 DUI case he was not represented by counsel but that he “could not recall” whether or not he was advised of his constitutional right to counsel. The Caudle case states that the court records pertaining to Caudle’s prior DUI case had “been destroyed, pursuant to statutory authority.” The county court found Caudle was guilty of laches for delaying nine to ten years before challenging the prior convictions (during which time the destruction of court records took place) and denied the motion. Caudle appealed to the circuit court, which reversed the county court, ruling that the burden of proving the validity of Caudle’s 1976 conviction was on the State because the record did not reveal that Caudle had been represented by counsel and the State failed to show a proper waiver of counsel.

This court accepted the State’s petition for certiorari and quashed the circuit court’s order. The opinion in Caudle noted and “distinguished” many cases, alluded to the defendant’s testimony that he could not “recall” being advised of his constitutional rights [as to counsel] and finally held that the county court was justified in applying the doctrine of laches because Caudle waited nine years before filing his motion to vacate and the court file had been destroyed in the interim stating:

To allow a defendant to delay until State records or witnesses are unavailable and then seek to place an impossible burden of proof on the State is inequitable and unjust.

504 So.2d at 423.

(7)(b) THE DOCTRINE OF LACHES IS INAPPLICABLE

(7)(b)(l) LACHES IS AN EQUITABLE DOCTRINE

Statutes of limitations, which limit the time for filing legal causes of action, are properly applicable only to actions at law including criminal cases. In equity proceedings, a more indefinite but parallel concept, the doctrine of laches relates to inexcusable prejudicial delay and applies to bar unseasonable assertions (demands) of equitable rights. Laches is an affirmative equitable defense; an implied waiver arising from undue delay in asserting rights; a presumption that the belatedly asserted claim had been abandoned or satisfied; laches is a species of estoppel. Concepts of implied waiver, adverse presumptions and estoppel are inapplicable to a defendant in a criminal case, defending against an attempt to violate his constitutional rights.

As to a defendant defending against the State’s use of a prior uncounseled conviction to enhance a subsequent offense, the doctrine of laches is inappropriate, inapplicable, unavailable, improper and unconstitutional.

(7)(b)(2) LACHES IS A DEFENSE TO AN AFFIRMATIVE EQUITABLE CLAIM

The doctrine of laches is a purely defensive measure; a defensive tool to bar the assertion of a claim; a shield rather than a sword. The State is affirmatively asserting in a current criminal case, as it must in order to use the prior conviction, that the defendant had, or waived, counsel in a prior criminal case. The defendant is in the defensive posture and is merely defending against the State’s affirmative claim. Cau-dle and Hlad claim constitutional rights, not equitable rights. If laches had any place in this criminal case it would be appropriate only for the defendant to assert that the State was guilty of laches by asserting its claim that the defendant had, or waived, counsel in a prior case after destroying court records that would show the contrary was true.

(7)(b)(3) THE DEFENSE OF A CURRENT CONSTITUTIONAL VIOLATION IS ALWAYS TIMELY

Even if it can be viewed that a defendant is “asserting” a claim that he neither had nor waived counsel, nevertheless, his challenge to the State’s use of a prior conviction in a current criminal case is not collateral, retroactive, stale or untimely. The defendant’s challenge is not a collateral attack on the validity of the prior conviction but is a present challenge to the State’s present use of the uncounseled misdemeanor conviction in a pending criminal case. It is not that Caudle and Hlad waited nine years to attack their uneounseled misdemeanor conviction. Both Caudle and Hlad currently challenged the current use of their prior uncounseled conviction as a response to its current use against them.

This point was made in State v. Holsworth, 93 Wash.2d 148, 607 P.2d 845, 848 (1980) which held that once a defendant charged with a subsequent offense based on a prior conviction “called attention” to or “alleged” the unconstitutionality of the prior conviction, the State must thereafter prove beyond a reasonable doubt that the prior conviction was constitutionally valid. In that case, the court noted, that although the conviction the use of which was successfully challenged in Burgett (notes 2 and 15 above) had occurred before Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), established the right of counsel, nevertheless, the United States Supreme Court refused to allow use of the prior conviction because its admission in evidence in the subsequent case would have in effect “renewed” the deprivation of the defendant’s constitutional rights. Each use of a prior uncounseled conviction constitutes a new violation of constitutional rights and its challenge at that time is always timely. In Burgett v. Texas, where the issue involved the use of an uncoun-seled prior conviction to enhance punishment for a new offense, the court stated, “In this case, however, petitioner’s right to counsel, a ‘specific federal right,’ is being denied anew.” 389 U.S. at 116, 88 S.Ct. at 262. The same point was made in State v. Conkling, when this court, ruling against the later use of earlier uncounseled juvenile adjudication, stated, “We are not, as the State suggests, belatedly reviewing the earlier juvenile adjudications.” 421 So.2d at 1112.

(7)(b)(4) THE STATE CAUSED THE PREJUDICE ARISING FROM DESTRUCTION OF RECORDS.

Contrary to the Caudle view the State, and not the defendant, created and caused the State’s problem. The State did not destroy records in reliance on the defendant not later resisting a violation of his constitutional rights. By section 316.193, the State, acting through the legislature, has provided for the enhancement of punishment based on prior convictions, regardless of the age of the prior conviction. Very foreseeably this statute puts into issue, in distant future criminal cases, all facts relating to the validity of prior convictions and the constitutionality of their use to enhance punishment in subsequent cases and this latter issue involves evidence that the accused had, or validly waived, counsel in the prior conviction cases. The Florida Rules of Criminal Procedure require that at many critical stages of a criminal prosecution the defendant have counsel or that its valid waiver be made a matter of record. See e.g., 3.111(d)(4); 3.130(c)(4); 3.160(e); 3.172(c)(ii). Next, those State instrumental-ities in charge of such things adopted Florida Rule of Judicial Administration 2.075(d)(3) which authorizes court clerks, also State agencies, to destroy court records in misdemeanor actions five years after a recorded judgment has become final. Thus, in many cases, as in Caudle and in this case, where the judgment itself is silent as to this fact the only record evidence as to a defendant having or waiving counsel in a prior misdemeanor case has been destroyed by the State. Next the State files a criminal offense which requires proof of a prior misdemeanor conviction, as an element, or a punishment enhancing factor, but finds that it has caused the only public record evidence as to the defendant having or waiving counsel in the prior misdemeanor case to be destroyed. Court records should not be destroyed.

To meet its self-made problem, the State attempts to use the presumption of the validity of a judgment of a court of record of general jurisdiction to establish that the defendant had, or waived, counsel in the prior misdemeanor case. As detailed in Part (3) above, an evidentiary presumption cannot be applied to cast a burden on the defendant in a criminal case to produce evidence the burden of proof as to which is on the State as the result of constitutional due process. Caudle implies that it was the defendant who delayed until the record evidence was unavailable and the defendant who sought “to place an impossible burden of proof on the State.” This is not so. The state and federal constitutions, not the defendant, place the burden of proof on the State. It is the State, not the defendant, that destroyed the evidence it now needs and it is the State, not the defendant, which is now attempting to use a presumption to unconstitutionally assert an uncoun-seled prior conviction. It is the duty of the State, not the defendant, to make and maintain public records sufficient to demonstrate the constitutional validity of all convictions and sentences in criminal cases.

(7)(b)(5) A NON-INCARCERATIVE MISDEMEANOR JUDGMENT CANNOT BE COLLATERALLY ATTACKED FOR LACK OF COUNSEL OR WAIVER

In reference to laches Caudle assumed that Caudle could have earlier attacked his misdemeanor conviction on the ground that he did not have, or waive, counsel. This assumption is not correct. Every conceivable legal affirmative attack on the misdemeanor judgment requires as a prerequisite that the judgment be invalid. As explained in Part (4) above, in a misdemeanor case where no incarceration is imposed the lack of counsel does not cause the misdemeanor conviction to be invalid; thus, it cannot be collaterally attacked as being invalid. It is not the original uncoun-seled, non-inearcerative misdemeanor judgment that is invalid or unconstitutional; the later attempt to use the prior uncoun-seled conviction in a subsequent criminal case is what is unconstitutional. The defendant’s challenge of that attempt is not a collateral attack on the prior conviction but a present and timely objection to its present unconstitutional use against him.

(8) SUMMARY

In 1978 the defendant was convicted of a misdemeanor DUI and was fined but not incarcerated. Because he was not incarcerated, this conviction is valid whether or not the defendant had, or waived, counsel. However, the uncounseled conviction, though valid, cannot be constitutionally used to prove, or to enhance punishment for, a subsequent offense. (Part 2 above) The State destroyed its records relating to the 1978 misdemeanor DUI conviction except for the judgment which does not show that the defendant had, or waived, counsel. In 1988 the State charged the defendant with a felony DUI charge, proof of which required use of the 1978 misdemeanor conviction. In the felony DUI case one germane issue was whether the defen